Jaynal lost his case at ECT; was the tribunal’s decision sound?

On 19 October 2017, Abedin Md Jaynal spent virtually the whole day in the Employment Claims Tribunal (ECT) arguing his case. By the close of the day, it was over, and he had lost. The magistrate dismissed his salary claim.

Jaynal told TWC2 that the magistrate was actually sympathetic to his side of the case, and had said something about how she could understand that he probably hadn’t been paid his salary, but she had to dismiss his claim given the balance of evidence. Of course, we don’t know if Jaynal’s recollection of what the magistrate said is accurate.

A review of the case notes reveals an interesting story.

TWC2’s first contact with Jaynal was in May 2017, when his case was already ongoing. What he told us went like this:

He started work for the company in August 2015

In the first seven months, salary was patchy (but this was not part of the claim later lodged)

Between September 2016 to March 2017, also seven months, he was not paid at all.

He approached his boss, a certain Mr Tay, about the matter in March 2017.

They resolved the issue thus: the boss would let Jaynal look for a new job, by giving him a “no objection to transfer” letter. In return, Jaynal would forgo his salary claims by signing 12 pieces of blank salary vouchers.

According to Jaynal, he was told that the transfer letter was all he needed for getting a new job.

Jaynal did find a new employer willing to take him, but when the new employer made a Work Permit application for him, it was rejected by MOM. Jaynal told us that transfer could not be approved because his current employer had not paid MOM’s monthly foreign worker levy for the past three months.

Jaynal attempted to re-negotiate with his current employer over the unpaid salaries, but the employer would not budge.

Jaynal then lodged a formal salary claim at MOM for about $4,500. Initial attempts at settlement by mediation through the Tripartite Alliance for Dispute Mediation (TADM) was also fruitless. Consequently, the matter was referred to the Employment Claims Tribunal (ECT). He also made a police report.

At the ECT, the employer produced the salary vouchers that Jaynal had signed. The copies submitted as evidence to ECT had numbers on them; they were not blank. Thus the employer argued that salary payments had been made.

That left Jaynal in a difficult position. What evidence did he have that salary had not been paid? How does one prove a negative?

Jaynal had a video clip showing his hands signing blank salary vouchers. Unfortunately, the video clip didn’t show any faces. Without context, it is hard to accept the video as evidence that the vouchers signed were the same ones as later produced as salary slips or that the signing was done at the employer’s behest.

Was the ECT’s decision correct? On reviewing the facts of the case and the available evidence (for what it’s worth) TWC2 holds the view that, sadly, it is probably correct in law. We too feel that, on balance, Jaynal’s story that he was never paid for those seven months is more likely true than not, but given that the system relies on available evidence, his case was extremely weak, and the law must do as law does.

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Throughout the process, TWC2 helped Jaynal assemble what arguments he could make, but we also advised him to keep his expectations low. We could see that the odds were stacked against him.

At TWC2, we believe that process has to work in objective ways, even if that means that sometimes the result may contain a vague sense of injustice. In the wider, longer-term interest, an impartial and robust process will help more workers than merely being passionate over any single case.

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Nonetheless, this case raises important issues. They centre around two questions:

What can be done to enable workers like Jaynal to have evidence in hand?

If it is true that a worker cannot obtain a transfer job unless the previous employer has paid up all levies, is it not a case of penalising an innocent man? [see footnote]*

On the first question, much can be done, and yet, mysteriously, is not done. TWC2 has long argued that rules should be in place to mandate all salary payments to be made by bank transfer. That way, simply producing bank statements would help workers like Jaynal show that no salaries had been paid. It would make for a fairer balance of evidence at ECT.

Because TWC2 has raised this point repeatedly over the years with MOM, we more or less know what the ministry’s reply tends to be. That reply, from our previous engagements over this issue, contains several threads:

MOM does not want to make it too difficult for small employers, e.g. hawkers — which TWC2 considers an extremely weak argument because hawkers and similarly small employers aren’t allowed to employ foreign workers;

Workers already have the right to request salaries through bank. This “right” is true in theory but cannot be realised in practice because employers are given the right to terminate an employee’s job at any time. Coupled with high recruitment fees, workers will not want to risk their jobs by displeasing their boss. Therefore such a “right” is of little substance.

The majority of employers already pay salaries through the bank. This may be true, but if one were an employer intending to cheat on salaries, you wouldn’t elect to be in that majority. You would exercise your choice to pay in cash, and rely on the power to terminate workers at will to ensure that no employees disputes your decision. Thus this third argument is hopelessly weak too. The likelihood of delinquent employers to choose the cash route is precisely why the route should be mandatorily closed.

As for the second question — holding a worker hostage to levies — such a situation is so absurd that a policy change is long overdue.

*This is not the first time that TWC2 has heard this. About a year ago, another worker was in a similar situation. He told us that at MOM, someone even suggested that if he really wanted his transfer approved, could he stump up the money and pay his employer’s owed levies, please?

On 20 July 2018, MOM took issue with 2 points in this story. See here.

TWC2 is an organization that is dedicated to assisting low-wage migrant workers when they are in difficulty. We are motivated by a sense of fairness and humanity, though our caseload often exceeds our means.